To protect our constitutional democracy requires vigilance.
We all want to be responsible citizens, right?
If we care about constitutional democracy and strive to be responsible citizens, we need to be familiar with its promises and pitfalls.
But what does that mean?
It means that we should be acquainted with the Declaration of Independence and the American Revolution. We should be well-versed in the Constitution, the Bill of Rights and the Federalist Papers. We ought to have fluency in the lives and writings of George Washington, Thomas Jefferson, John Adams, James Madison, Alexander Hamilton and Benjamin Franklin. We should have a sense of decisions by subsequent (and consequential) presidents, major acts of legislation, Supreme Court decisions and Constitutional amendments. In other words, we should have a fundamental grounding in civics.
How’s that going?
Okay, not so well for me either …
Now, not everyone had a great high school history, “social studies” or civics teacher. And most people don’t have the time, energy or interest to read the biographies of Founding Fathers, the interminable verbiage of congressional legislation or the Byzantine language of Supreme Court rulings. And on top of it all, plenty of people are simply fed up with the corruption and meanness of modern politics. Consequently, they give up and walk away.
So for the citizen who cares, but struggles to have the time or stomach to be astutely aware and engaged, what should they pay attention to?
The structure of government.
But what does that mean?
The Founding Fathers recognized that one of the greatest enemies to democracy is appetite. Human beings — notwithstanding our fleeting brighter, angelic moments — are hungry to enlarge ourselves. St. Thomas Aquinas brilliantly articulated that, instead of God, we are constantly pursuing power, pleasure, honor and wealth. The Founders witnessed the unchecked appetites of the British government as the Colonists were denied the right to lodge their concerns to King George III through duly elected representatives in the British Parliament (“No taxation without representation!”). But the Founders also knew that those same self-aggrandizing tendencies were not peculiar to the British crown. They are deeply ingrained in human nature. Because of this fact, the Founders deemed that the proper structure of new American government is paramount in preventing the excesses of man.
The proper structure of government, in the eyes of the Founders, required several branches with specific, independent responsibilities (a legislature that makes laws, an executive that signs laws and oversees the federal bureaucracy, and a judiciary that faithfully interprets and upholds the Constitution and properly passed laws). The branches also check each other, with the executive signing or vetoing legislation and selecting judges, the legislature confirming the judiciary and determining law for the executive to sign or veto (with the right to override the veto), and the judiciary affirming or overturning laws from the legislature (when considered contrary to the Constitution or duly-enacted legislation) or checking actions of the executive. What is more, the Founders saw it fit to mandate further checks balanced between two houses of Congress and between the federal and state governments. The different branches and the different levels of government (state vs. federal) and the peculiar check that each has on the other are, first and foremost, a safety mechanism against any one branch (or level) becoming too powerful.
Attempts to circumvent these checks (an “end run,” if you will) dangerously risks creating an imbalance in government that could lead to despotism within a particular branch or level of government. Just consider the judicial philosophy of “The Living Constitution” in which unelected judges/justices may untether themselves from the “constraints” of written law (rooted in the Constitution and subsequent legislation) and actively judge law based on their personal preferences. Or ponder the implications of “Presidential Signing Statements” that effectively act as a line item veto in which the president alters Congress’ painstakingly crafted and meticulously worded law to implement his own preference (a cafeteria style selection of presidential likes and dislikes in the bill). Or consider the burgeoning, unelected administrative state in the federal bureaucracy which interprets vague law to their bureaucratic (and often ideological) heart’s content after legislators have abdicated their responsibility to articulate the way the law should truly be implemented. Unelected judges/justices with their own designs on the law, presidents making law (not simply signing it) by deciding what they choose to implement and what they choose not to, and unelected bureaucrats designing and implementing law to their personal preferences. These are situations of troubling imbalance that risk the unchecked expansion of one branch over the other. These are circumstances rife with the appetites of man.
We must be wary of this. And a fundamental understanding of civics helps us recognize who we will trust to make, interpret and implement laws. Any time the maker or implementer the law falls outside of the reach of democratic control, there is risk for abuse because the check of a citizen’s vote is removed. Any time the constitutionally approved responsibilities of a branch of government are enlarged or abdicated, there is risk for abuse because an imbalance of power between branches is often the consequence. Vigilant citizens understand this and are appropriately wary of it.
Senator Ben Sasse (R-NE) spoke to this dangerous imbalance of power between the branches of the federal government in his opening statement at Judge Brett Kavanaugh’s Supreme Court nomination hearings:
What Supreme Court confirmation hearings should be about is an opportunity to go back and do Schoolhouse Rock civics for our kids. We should be talking about how a bill becomes a law, and what the job of Article II is, and what the job of Article III is.
So, let’s try just a little bit. How did we get here and how do we fix it? I want to make just four brief points.
Number one: In our system, the legislative branch is supposed to be the center of our politics.
Number two: it’s not. Why not? Because for the last century, and increasing by the decade right now, more and more legislative authority is delegated to the executive branch every year. Both parties do it. The legislature is impotent. The legislature is weak. And most people here want their jobs more than they really want to do legislative work. And so they punt most of the work to the next branch.
The third consequence is that this transfer of power means that people yearn for a place where politics can actually be done. And when we don’t do a lot of big actual political debating here, we transfer it to the Supreme Court. And that’s why the Supreme Court is increasingly a substitute political battleground. It is not healthy, but it is what happens and it’s something our founders wouldn’t be able to make any sense of.
And fourth and finally: we badly need to restore the proper duties and the balance of power to our constitutional system.
On the indispensable role of the structure of government, Justice Antonin Scalia once observed,
The foundation of our freedom is not based in the Bill of Rights. That was an afterthought. Every tinpot dictator has a Bill of Rights which he casually ignores. What was debated in 1787 and what insures our freedom is our STRUCTURE of government, which holds each branch (and in turn by its people) to account. Have no illusions. Structure dictates destiny …
And later, noting that trifling with the structure of government invites peril, Scalia would add his two cents on the Supreme Court cases that matter most,
The structural cases … that is what’s crucial.
As United States citizens we are busy. We may not have time to read the Founders, presidential history, specific legislation or Supreme Court cases. Heck, we may not even have the interest. But to better understand how the structure of government works to prevent the imbalance of power and the unchecked appetites of man, perhaps we should start paying a little more attention.
It’s as simple as knowing your civics.
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